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McLean Bros & Rigg Ltd v Grice

McLean Bros & Rigg Ltd v Grice

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Case Copied 4 March 1906 49 min read

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pressed by my learned brethren. In my judgment the plaintiff, assuming the necessary amendments made, should succeed. Whether the appropriate remedy is a mandamus it is not necessary now to determine; but I do not see how the Court could itself act as it would in a private trust because the legis- lature has created a special tribunal for the purpose.

Appeal allowed. Judgment for the plain-

tiff discharged and judgment entered for the defendants on the demurrer. In accordance with the undertaking given by the appellants in asking for special leave to appeal, appellants to pay the costs of the appeal. Solicitor, for the appellants, The Crown Solicitor of New South Wales.

Solicitor, for the respondent, N. W. Montagu.

[HIGH COURT OF AUSTRALIA.]

McLEAN BROS. &RIGG LTD.

JAMES GRICE AND ANOTHER

RESPONDENTS. DEFENDANTS,

ON APPEAL FROM THE SUPREME COURT OF Companies Act 1890 (Vict.) (No. 1074), secs. 52, 67, 114, 115, 118-Company-

Voluntary liquidation - Extraordinary resolution - Presence of quorum at meeting-Evidence- Presumptive evidence-Agreement to release liability in respect of shares.

4 CLR 836

Sec. 118 of the Companies Act 1890 requires that notice of any extraordinary resolution passed for the winding up of a company voluntarily shall be given by advertisement in the Government Gazette.

Held, that a record in writing of such a resolution signed by the chairman of the meeting at which it was passed, a copy of which was sent to the Registrar-General, and recorded by him, and was also published in the Government Gazette, was prima facie evidence that all that took place at that meeting was done lawfully, and, therefore, if a quorum was requisite at such meeting, that there was such a quorum present.

By reason of the presumption against fraud in the carrying out of duties to be performed under an Act of Parliament, a certified copy of a printed copy of such a resolution sent to the Registrar-General by the company is prima facie evidence of a valid resolution.

Where an act is done which can be done legally only after the performance of some prior act, proof of the later act is presumptive evidence that the prior act was done. This presumption is applicable to the proceedings of corpora- tions, and, therefore, proof of the passing of an extraordinary resolution for voluntary winding-up is prima facie evidence that, if a quorum was necessary at such meeting, a quorum was present.

Held, on the evidence, that the prima facie evidence that a quorum was present at such a meeting was not rebutted.

Held also, upon the evidence, that there was no evidence of any valid agreement by the company discharging the respondents from their liability to a call made under the voluntary liquidation.

Decision of the Supreme Court: McLean Bros. &Rigg Ltd. v. Grice, (1906) V.L.R., 610; 28 A.L.T., 14, reversed.

APPEAL from the Supreme Court of Victoria.

An action was brought by McLean Bros. &Rigg Ltd., a company alleged by the statement of claim to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1906] HCA 1
Decision Date: 4 March 1906

CaseChat Overview and Summary

McLean Bros & Rigg Ltd v Grice concerned a dispute arising from the voluntary liquidation of McLean Bros & Rigg Ltd. The central issue was whether the extraordinary resolution to wind up the company was validly passed, specifically concerning the presence of a quorum at the meeting where the resolution was adopted. The case was heard by the High Court of Australia, comprising Griffith C.J., Barton and O'Connor JJ.

The court was required to determine whether the meeting at which the extraordinary resolution for voluntary liquidation was passed had the requisite quorum as stipulated by the Companies Act (Vict.). Furthermore, the court had to consider the evidentiary weight of the company's register and minutes in establishing the presence of a quorum and, consequently, the validity of the resolution. The case also touched upon the effect of such a resolution on any agreement to release liability in respect of shares.

The High Court held that the register and minutes of the company, in the absence of evidence to the contrary, constituted presumptive evidence of the facts recorded therein, including the presence of a quorum at the meeting. The court applied the principles of company law regarding the validity of resolutions passed at general meetings and the evidentiary presumptions applicable to company records. The judges reasoned that the statutory requirements for a quorum were met, rendering the extraordinary resolution for voluntary liquidation validly passed.

Orders